Brussels, 10/12/2002 (Agence Europe) - Klaus-Heiner Lehne (CDU), rapporteur for takeover bids, presented to the EP legal committee a working paper for guiding the debates of MEPs and discussions with the Commission. He was to present his report to the committee in February, and the plenary is to give its opinion at first reading in April.
According to Mr Lehne, the draft directive presented on 2 October by the Commission (EUROPE of 3 October, p.7) does not fully re-establish an equal playing field between companies concerned or those making takeover bids. In his view, the principle of "one share, one vote" is not respected, as the proposal does not do away with the possibility of multiple voting rights associated to certain shares. "The Commission has maintained on several occasions that it was not possible for it to include multiple voting rights in its text as this could be detrimental to the property rights that are the subject of constitutional guarantees", he recalls. He goes on to remark that "this reasoning neglects the fact that it is possible to foresee compensation" and that this compensation mechanism "already exists for legally comparable situations in several member States".
The rapporteur also stresses that the new Commission proposal does not take into account the Court's ruling on Golden Shares, which allows a State to keep control of an enterprise that has been privatised. It "is concerned neither by monopolistic structures nor by actions accompanied by special control rights", because it considers that this is a question that must be resolved in the context of competition law. "The rapporteur essentially shares this opinion" but, however, would like to reflect upon the possible inclusion of several additional provisions in the directive.
Mr Lehne also raises the question of the need to provide a closer link between the risks taken by the investor and the threshold opening up the right to increased decision-making power within the company. The Commission had chosen not to take on board the conclusions of the Winter Group on corporate law, which linked the rule of neutralisation to risk capital and to a threshold, expressed as a percentage of the capital, on the basis of which the bidder acquires a large part of the company's decision-making power.
Furthermore, although the Commission took up the proposals of the Winter Group for defining the fair price to be paid by the bidder to minority shareholders in the case of "squeeze out", the proposal lacks a definition of the threshold of control of the company in question. Mr Lehne wonders therefore whether there should be a higher level of harmonisation on this point.
Finally, the rapporteur asks whether there should be additional provisions on information rights.
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